Baker v. Geist

55 Pa. D. & C.2d 650, 1971 Pa. Dist. & Cnty. Dec. LEXIS 220
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedJune 7, 1971
Docketno. 1153
StatusPublished

This text of 55 Pa. D. & C.2d 650 (Baker v. Geist) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Geist, 55 Pa. D. & C.2d 650, 1971 Pa. Dist. & Cnty. Dec. LEXIS 220 (Pa. Super. Ct. 1971).

Opinion

LIPSITT, J.,

Minnie E. Geist, defendant, has filed a motion for a new trial after a jury made [651]*651a finding in favor of Harold S. Baker, plaintiff, and in favor of Robert E. Baker, a third-party defendant. This litigation arises as the result of an automobile-motorcycle accident which occurred on September 21, 1968, at the intersection of U.S. Route 22 and Franklin Street in Lower Paxton Township, Dauphin County, Pa. Harold S. Baker was a passenger occupying the rear seat of a motorcycle operated by his son, Robert E. Baker. The vehicle operated by Minnie E. Geist, which had been travelling west on the highway, made a left-hand turn at the Franklin Street intersection into the eastbound lanes of U.S. Route 22 and collided with the motorcycle which was travelling east on said route.

Both of the Bakers were thrown from the motorcycle and Harold S. Baker was injured. Harold S. Baker brought this action for personal injuries against the operator of the automobile, Mrs. Geist, who, in turn, joined Robert E. Baker as an additional defendant.

The jury rendered a verdict in favor of plaintiff and solely against defendant, Minnie E. Geist, in the amount of $49,200.

Defendant now poses two questions: (1) Did the trial court err in instructing the jury that plaintiff could not be found guilty of contributory negligence, and (2) was the verdict in favor of the additional defendant against the weight of the evidence?

In her first contention, defendant urges that an analysis of the facts shows there was substantial evidence of contributory negligence on the part of Harold S. Baker and the court committed error by instructing the jury that as a passenger Harold S. Baker could not be found guilty of contributory negligence and in refusing to give any instructions as to a possible finding of contributory negligence on his part. In her testimony, Mrs. Geist said she halted at the intersection to make a left turn with her turn signal on and waited for sev[652]*652eral cars to pass and, after observing two cars passing abreast travelling at about 35 or 40 miles per hour, she then made her turn. Plaintiff, Harold S. Baker, said that he first saw the Geist vehicle halted at the intersection when they were about 100 feet away from it, and he was not sure whether the turn signal was on. He said that he was not paying strict attention to the Geist vehicle, and he did not continue to watch as they approached the intersection. On crossexamination, he said as they approached the intersection the motorcycle did not slow down nor were any brakes applied nor did he at any time say anything or give any warning of any kind to his son. However, he testified he did not expect any movement by the Geist car until they passed it. After observing the Geist vehicle stopped at the intersection, plaintiff did not see it again until they were a few feet from it and his son was swerving the motorcycle to avoid an impact.

There were a number of duties which defendant claims are imposed upon a passenger of a vehicle. It is pointed out for example that a guest in a motorcycle sidecar who permits it to be driven at an excessive rate of speed without an admonishment of the driver is contributorily negligent: Guiducci v. Mason, 326 Pa. 490 (1937). There can be no quarrel with this rule, but the difficulty is there was no evidence of excessive speed on the part of the operator of the motorcycle. To the contrary, the motorcycle was being operated within the speed limit according to the only testimony submitted in this connection. Further, it is said Harold S. Baker failed to exercise diligence or reasonable care for his own safety since he had seen defendant in a stopped position about to make a left turn and thereafter paid no attention. And it is argued, he knew his son was not slackening the speed of his motorcycle, and he made no attempt to apply his brakes as they [653]*653approached this intersection. By not paying attention to the left-turning vehicle nor uttering a word of warning to his son or suggesting that he might be following too closely behind the vehicles in front of him, it is contended he was permitting the vehicle to be operated in such manner as jeopardized his well being.

While defendant acknowledges that the operator’s negligence is not imputed to a passenger, she insists that as an experienced motorcycle operator, he violated some duty. Although it is true a passenger may be held responsible for his negligence in joining with a driver in testing a danger he knows exists, the problem in this case is there was no danger which was known or reasonably manifest to the passenger here. He first saw the Geist vehicle about 100 feet away, a comparatively short distance; he saw nothing unusual at the point of the intersection, the Geist vehicle was stopped waiting to turn, and there was no evidence of any improper or abnormal conduct on the part of his son in his driving. He certainly had no duty to anticipate that defendant would make a left-hand turn into the path of the motorcycle. It may also be noted that the jury found the additional defendant was not negligent, and a guest is not required to exercise the same degree of care and watchfulness as a driver. See Minnich v. Easton Transit Co., 267 Pa. 200 (1920).

■ The jury having concluded that the additional defendant, being the operator of the motorcycle, was not negligent, the court’s failure to charge as to the contributory negligence of the passenger would appear to have had no effect on the outcome of the case. Defendant, however, argues that when the jury was told plaintiff could not be found negligent and he was the father of the operator sitting immediately to his rear with personal experience in handling a motorcycle, this was tantamount to instructing the jury that his son could [654]*654not be found guilty of any negligence. This argument is, at best, very speculative, particularly because the court did give complete and adequate instructions to the jury relative to the finding of negligence on the part of the motorcycle operator.

Defendant relies on the strong language in Heffernan v. Rosser, 419 Pa. 550 (1966), where our Supreme Court said, at page 558:

“Only in the most clear situations may there be a judicial declaration, as a matter of law, either that there was contributory negligence or that there was not such negligence . . . Ordinarily, the question of contributory negligence is for the jury . .

This principle of law must, of course, be accepted by this court. The obstacle is that the evidence here revealed no activity by plaintiff which could be deemed negligent. Thus, there was a clear situation which required a judicial declaration of no contributory negligence. Where there is no evidence in the record to justify a jury inferring a plaintiff was guilty of contributory negligence, it is the duty of the court to give binding instructions that, as a matter of law, no such question exists: DeJohn v. Orell, 429 Pa. 359 (1968).

The second issue concerns the question whether the verdict in additional defendant’s favor was against the weight of the evidence. Defendant reviews much of the testimony wherein it is suggested that additional defendant could have been found guilty of negligence. She specifies that Robert E. Baker knew or reasonably should have known that Mrs. Geist was in the process of turning and had made several motions in that direction but, nevertheless, did not apply his brakes nor slacken his speed.

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Related

Heffernan v. Rosser
215 A.2d 655 (Supreme Court of Pennsylvania, 1966)
DeJohn v. Orell
240 A.2d 472 (Supreme Court of Pennsylvania, 1968)
Guiducci v. Mason
192 A. 632 (Supreme Court of Pennsylvania, 1937)
Minnich v. Easton Transit Co.
110 A. 273 (Supreme Court of Pennsylvania, 1920)
Burrell v. Philadelphia Electric Co.
265 A.2d 516 (Supreme Court of Pennsylvania, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
55 Pa. D. & C.2d 650, 1971 Pa. Dist. & Cnty. Dec. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-geist-pactcompldauphi-1971.